PUBLIC RECORD OFFICE
Reference :-
TLC.O.885
16 PUBLIC RECORD OFFICE, LONDON
| ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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circumstances, debarred from entertaining the claim on the ground that the pro- ceeds of sale of the stock had not been received by the Colonial Government. The Law Officers will observe from this report that the Master states that the petitioners furnished unimpeachable proof on oath to his satisfaction that their property was taken somewhere about the end of November from their farms by the Imperial troops and was driven to Nottingham Road and Estcourt, where it was sold on behalf of the Imperial Government by Messrs Raw and Company, of Pietermaritzburg, who undoubtedly paid over the proceeds to the Imperial Government.
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Enquiries have been made of Messrs. Raw and Company as to the sales in ques- tion, and a list of sales for 1899-1902 has been furnished by them; the military authorities in South Africa cannot, however, identify the stock sold with the stock claimed by the petitioners as having been sold owing to lapse of time and the destruction of vouchers, but stock was undoubtedly sold and the proceeds credited to Army Funds, and down to June, 1900 (after which date it is considered by the War Office that sales of Natal stock coming into the hands of the military must be taken to have ceased), some £14,653 was realised from such sales. petitioners' claims as assessed by the Master amount to a sum of about £13,118.
It will thus be seen that, on the one hand, the Master of the Supreme Court of Natal expresses himself as satisfied that the petitioners' stock was sold and the proceeds paid to Army Funds, whilst, on the other hand, though the War Department cannot identify the stock sold with the petitioners' stock, stock to the amount claimed or thereabouts was in fact sold about the time alleged and the proceeds received by Army Funds.
There is not sufficient evidence to show what the intention of the military was at the time the stock was removed and sold, i.e., whether it was intended to confiscate it, or whether it was merely intended to remove it for the purpose of preventing it falling into the hands of the enemy and subsequently to restore it or its value to the owners.
It is stated by the War Office that when cattle, &c., were driven off farms, the correct procedure was for the military to give receipts. It is not suggested by the petitioners that any such receipts were given in the present case, but the absence of any receipts is not perhaps a fact from which any reliable conclusion can be drawn in all the circumstances.
The question of making any payment to the petitioners in this case (subject to the War Office being satisfied as to the facts alleged) would appear, in addition to involving certain legal questions, to be a matter of policy, and it may be stated that compensation has not been refused to rebels in Cape Colony, nor, so far as the funds administered by the Colonial Government under the Derelict Stock Fund Act are concerned, in Natal, and it is conceived that confiscation of the stock could not be justified on the ground that the petitioners were rebels.
On the 5th August, 1903, the Treasury Solicitor was desired by the Secretary of State to advise upon the question of the legal liability to pay compensation to the petitioners and upon the case generally; the attention of the Law Officers is drawn to the Secretary of State's minute of 5th August and to the Treasury Solicitor's minute of 25th August in reply. It will be seen that the Secretary of State now desires the opinion of the Law Officers upon the legal aspect of the case.
The questions of law which appear to the Treasury Solicitor to arise are dealt with in his minute of 25th August, 1908, to which counsel are referred, and to - which the following more detailed observations may be added.
Natal was originally occupied partly by Boers from Cape Colony and partly by English settlers. In 1844 it was occupied by a British military force, and by Letters Patent of 31 May, 1844, it was annexed to Cape Colony, with power for the Legislature of Cape Colony to establish laws and ordinances, &c. By Cape Ordinance No. 12 of 1845 the Roman-Dutch Law was established in Natal, and this has not been altered by the subsequent instruments constituting Natal a separate Colony, and giving it Responsible Government.
With regard to the question whether the petitioners would be debarred from presenting a Petition of Right by reason of their status as British subjects resident in Natal, the following observations are submitted, in addition to the opinion expressed in the Treasury Solicitor's minute of the 25th August, 1908, para- graph 1 (6).
In "Clode on Petitions of Right," this is treated apparently as a personal dis- ability on the part of the subject residing in a Colony where the Common Law of
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England has no force. The Law Officers' Opinion of the 28th June, 1904, para- graph 1, is capable of bearing the same interpretation, but it should Le noticed that the Canadian case cited by "Clode," in which this question was touched upon, was a question of a claim against the Canadian Government and of its enforcement. in the Canadian Courts. Similarly, the case of Fournier, which was tefore the Law Officers, was a case where the petitioner sought a remedy against the Canadian Government in the Canadian Courts. The case cited by the Colonial Office from Appeal Cases, page 571, was similarly a case where the claimant sought a remedy against the Colonial Government in the Colonial Courts. It may very well be that inasmuch as the powers conferred upon the Colonial Government and upon the Colonial Courts, and the general relation of that Government to British subjects resident within its jurisdiction, are in the cases now being dealt with governed by the local Colonial Law, which has been declared to be the law of the place and in which the English law relating to Petitions of Right finds no place, no Petition of Right will lie in such cases, and that on its true interpretation the Law Officers Opinion of 29th June, 1904, should be limited to such cases. Assuming that view to be correct, it does not necessarily govern the present case. The present claim is not against the Colonial Government, but against the Imperial Government, and it is suggested that there is no valid reason why a Petition of Right should not be presented here in the ordinary way.
There can hardly be any personal disability in the petitioners on account of their position as British subjects resident in Natal. Petitions of Right, have been several times presented by aliens and duly fiated and dealt with. See "Robertson, Civil Proceedings against the Crown," page 364, &c. It is doubted by "Clode," page 35, whether an alien can present a Petition of Right, but it has certainly been done. Now these British subjects cannot by any possibility be placed in a worse position than aliens. Even, therefore, if there should be technically any personal disability, for which there seems to be no reason, it would not appear to be practi- cally possible for the Secretary of State to refuse to deal with their petitions just as he deals with the petitions of aliens; nor does the fact that the cause of action relates to matters which took place out of this country form any ground for refusing a Petition of Right, any more than it is necessarily a bar to an action between sub- ject and subject. Had the acts' now complained of been committed by a British subject resident here, there seems to be no doubt that the Courts here would have had jurisdiction to try it, apart from questions of discretion as to what should be the proper form for such an action.
Claims of this nature by Colonial residents against the Imperial Government would naturally arise only on very rare occasions, and the Treasury Solicitor has not been able to discover any case in which a Petition of Right has been presented under these circumstances. There have been several Petitions of Right in late years presented by residents in British Colonies where the law of England prevails. and where a remedy was sought against the Colonial Government, and in these cases it has been the practice for the Attorney-General to fiat the petition for trial in the Colonial Court. These petitions have been sometimes presented here because the local law contained no enactment corresponding to the Petition of Right Act. 1860, and there was, therefore, no power on the part of the Governor to fiat the petition.
In other cases where a local procedure has been enacted, nevertheless if the Governor refuses his fiat, the petition has been presented here and fiated; see the Law Officers' Opinion of March 29th, 1897, in the case of West Australia (copy herewith).
It is understood that in one case a petition was fiated for trial in the Royal Court of Jersey, where the Common Law of England does not prevail; but it is possible that this particular question was not considered on that occasion.
The question whether if a Petition of Right were presented in this case it could be fiated for trial in the Natal Court, seems to fall within the principle of the Law Officers' Opinion of the 29th June, 1904, and should, it seems, be an answer to the negative, on the ground that as the Natal Courts administer justice according to a system of law which knows nothing of Petitions of Right the fiating of the petition would give them no jurisdiction to deal with it. It may, nevertheless, be open to the petitioners to present a petition for trial here, although of course the inconvenience of such a course might be considerable.
As to the distinction between claims against the Colonial Government and